Appeals to sanity

The Microsoft ruling makes possible some fireworks within the Linux community, but business as usual is more likely.

COMMENTARY--Shortly after last month's appeals court ruling that rejected the order to break up Microsoft, it was hard to avoid the scenes of jubilation from Redmond and its supporters. Company chairman Bill Gates was telling anyone who would listen how great a victory it was and how the company was ready to settle. One state, New Mexico, bailed out of the process in return for getting little more than its legal costs back.

In recent months, the company has appeared downright emboldened by the verdict, and some observers feared that Microsoft would become more aggressive than ever in dealing with the marketplace. With its Hailstorm services plan and other initiatives in the wings, the company seemed quite ready to maintain--and indeed extend--its position of market dominance.

Then the hype dissipated, and a very different story emerged. The appeals court only threw out the order to split up the company, but it didn't deny the original court's finding that Microsoft engaged in monopolistic practices. A new court will now have to reconsider the case and come up with a new punishment. It could even decide to impose a split.

So we're still in a limbo with Microsoft, guilty but unpunished. Microsoft has indeed softened up a bit, allowing OEMs to put their own icons on the Windows desktop and to remove Internet Explorer icons. While some think this is a big deal, that kind of baby step hardly levels the playing field.

The most interesting analysis I've yet read on the issue was one produced by Robert Bork and Kenneth Starr in the Wall Street Journal. (Yes, that Bork and that Starr.) They argue that the finding of guilt will still hurt Microsoft even if the Department of Justice follows New Mexico's lead. They submit that the guilty verdict serves as meaty evidence for Microsoft to be hacked at by a swarm of piranha-like lawsuits.

"[...] plaintiffs can rely upon the appeals court's ruling and need do little more than prove they were injured and by how much to collect damages running well into the billions of dollars. Such companies would have to answer to their shareholders if they do not reach for what one lawyer has described as "low-hanging fruit."
In other words, suing Microsoft is not just an option for its competitors, it's practically an obligation.

Well, there's one lawsuit you won't be seeing. When I passed around the idea of Linux users and vendors taking Microsoft to court, the response was universally negative. Eric Raymond and other members of the Open Source Initiative opposed it. Jon "Maddog" Hall, executive director of vendor organization Linux International (who has written that he agrees with the court's recent findings), said he might endorse a lawsuit if someone else started one but would not initiate one himself. And Linus Torvalds seemed to share the concerns of many: that technology issues can't really be solved by the courts. "I'm ready to protect my copyright," Linus said, "but I sincerely hope that I'll never in my life be part of a lawsuit, either as the suing party or the defendant. Lawsuits are a real nuisance and not worth your time."

It's been my experience that open source folks usually try to avoid legal garbage when confronted. This is good news for those who want to let the marketplace, not lawyers, determine technology.

And yet here we are, still with a finding of guilt on Microsoft's part. What to do? I stand by my previously stated belief that there are two ways to best level the playing field while leaving Microsoft free to truly innovate: have governments specify open source development for their own IT projects, and force Microsoft to publish its APIs and file formats. These remedies require no lawsuits, no fines, and no breakup. If Microsoft truly wants to settle and the government really wants to deal with the monopoly, that's all they need to agree upon.

What penalty do you think should be imposed on Microsoft? Tell Evan in the Talkback below or in the ZDNetLinux Forum.